Broadband speeds: Ofcom may act on Code

Deutsch | Español | Français | Italiano | Português | 日本語 | 한국어 | 简体中文

I've banged on for a while about UK broadband speeds often not matching up to the speeds advertised by ISPs ("headline" speeds) - they normally advertise the maximum possible speed achievable (I'm tempted to say "by someone living on top of the telephone exchange in perfect conditions"), which is not necessarily, and indeed probably not, the average top speed that most internet users would experience in practice.

To date we've only had a voluntary code of practice on broadband speeds for ISPs, from December 2009, by which "ISPs who have signed-up to the Code commit to provide information to consumers before they enter into a contract about the maximum broadband speed they can expect on their line, and about the factors that will affect their actual speed. "

Recently, UK comms regulator Ofcom carried out a mystery shopping exercise (full PDF report by Synovate), and it may come as no surprise to many of us to know that they've found that ISPs aren't fully complying with the Code of Practice. Ofcom noted, "although more information on broadband speeds is now provided by ISPs following the introduction of the Code ^(-2-), information is still often not sufficient to allow consumers to have clear expectations about the broadband service they sign-up to."

From Ofcom, I've emboldened and italicised bits:

"The research found that the majority (85 per cent) of telephone mystery shoppers were provided with an estimate of the maximum speed available on their broadband line before signing up with a provider.

However, almost half (42 per cent) of these shoppers had to prompt providers for their speed late in the sales process.

In addition, three quarters (74 per cent) of mystery shoppers were not informed that their actual speed was likely to be below their maximum line speed…

The research also showed that shoppers often received a wide variety of different estimates of the maximum line speed from different ISPs for the same line."

What explains the big differences? Well, Ofcom found that:

• ISPs use different methods to calculate and present line speed information
• Some ISPs often gave estimates for maximum line speed as a wide range (such as "10-20Mbit/s") - which could lead customers to expect much higher speeds than actually received.

As a result of the mystery shopping, Ofcom means to tighten the Code to ensure consumers are given adequate information about their broadband service when making purchasing decisions. "This involves working with the ISPs to ensure that they are able to give more consistent and accurate information on line speeds." More specifically, Ofcom said they'll:

• "work with ISPs to agree a consistent and accurate way of calculating and presenting access line speed information and amend the Code accordingly;
• amend the Code to require ISPs to commit to giving the access line speed estimate early in the sales process, i.e. before asking the customer for bank details or a MAC. Currently the Code only requires ISPs to give this information before completion of the sales process.
• find ways of ensuring that ISPs give consumers better information on why and how actual broadband speeds may be lower than headline speeds.
• explore with ISPs whether it would be appropriate to add a new provision in Code which allows customers to leave their contract period without penalty if the access line speed received in practice is significantly below the estimate given at the time of signing up."

Their press release said, "Ofcom expects to be able to agree changes to the Code by summer 2010. If agreement cannot be reached with ISPs, Ofcom will consider whether it is necessary to introduce formal regulations." And Ofcom indicated they'll also do more mystery shopping to check if there are improvements in compliance.

Frankly I don't think that's good enough; I previously pointed out the key shortcomings of the voluntary Broadband Speeds Code, which I thought wouldn't actually help consumers much, and it's disheartening to be proved right.

It's also disheartening for consumers that Ofcom are only considering working or exploring things with ISPs - why not involve consumer groups like Consumer Focus, or indeed the official Communications Consumer Panel?

I feel that consumers should be able to terminate their contracts immediately if they find the speed they actually get is significantly less than what they were told, rather than be stuck for a year on speeds much lower than they were sold on. The Ofcom Consumer Panel (the former name of the Communications Consumer Panel) had pointed that, and other issues, out as long ago as 2007.

For what it's worth, see Ofcom's advice for consumers on broadband speeds. More to the point, you might consider taking part in Ofcom's broadband speed tests, and even raising the argument that there have been unfair commercial practices on the part of the ISPs.

Tags: advertising, broadband, broadband speeds, ISPs, ISP, broadband providers, Ofcom, internet connection, broadband service, internet access, Net access, consumer rights, consumer law, Improbulus, A Consuming Experience

Online shopping comparison sites – shipping costs must be included

Deutsch | Español | Français | Italiano | Português | 日本語 | 한국어 | 简体中文

UK internet shopping web sites should probably (whether they knew it or not) have had to indicate shipping / delivery costs (as well as VAT) clearly on their sites since May 2008, under the Consumer Protection from Unfair Trading Regulations.

That particular point was made in guidance from UK government departments on computer online sales, rather than something that was explicitly spelt out for all web shopping sites, but it makes sense or is at least good practice, given the general law banning “unfair commercial practices” which should have been implemented across the EU in 2007 – the UK were late, and a few others are still behind (more on unfair commercial practices in the UK; and see which countries have banned unfair commercial practices).

A recent Google Base blog post mentioned that “on July 16th the German Supreme Court ruled in a lawsuit concerning shipping costs in comparison shopping results” and that Google were working on a solution for German merchants.

Now I’ve not been able to track down the judgement or any other news on it yet, but I strongly suspect that the court must have ruled that internet price comparison sites are required to include the full total price when serving up results comparing products from different websites, i.e. sales tax and shipping charges as well as the base price.

And I wouldn’t be at all surprised if that’s because of the Unfair Commercial Practices laws in Germany.

As soon as I've more info I'll report back. Does anyone else know any further details about this case?

Update: now see the German court's press release (in German) on the German supreme court ruling of July 16, 2009 - I ZR 140/07 (LG Hamburg, decision of 16 Jan 2007 416 O 339/06 & OLG Hamburg, decision of 25 Jul 2007 5 U 10/07 Karlsruhe, 17 Jul 2009), kindly sent to me by someone whose translation of the press release is as follows:

"Under the price regulation, a dealer is obliged to indicate whether in addition to the final price of the product there are additional delivery and shipping costs. Where appropriate, he must indicate their amount or the way in which they are calculated. This information must be clearly assigned to the advertising as well as easily identifiable and clearly legible or otherwise be made clearly perceptible.

With prices in price comparison lists, consumers must be able to see at a glance whether the price includes shipping or not. The significance of the price comparison, which is usually displayed in a ranked list, depends on this essential information. Under these circumstances, it is not sufficient if the consumer is only informed about additional shipping costs at the moment he consults the details for a specific product."

While that’s just a local German case, it may be influential elsewhere in the EU. And there's no reason why it shouldn't apply as much (if not more) to shopping sites as to price comparision sites. If the result of the case is to make European retail websites as well as price comparison services (aka shopping comparison sites or price engines) pull their socks up and provide complete easy to find pricing information in terms of the actual total cost to the consumer, making it easier to compare the total cost of purchase, that can be no bad thing for consumers.

Tags: unfair commercial practices, consumer protection from unfair trading regulations, consumer rights, consumer law, Improbulus, A Consuming Experience

Twitter info: was TechCrunch’s publication legal?

Deutsch | Español | Français | Italiano | Português | 日本語 | 한국어 | 简体中文

The recent security breach involving popular microblogging site Twitter has been very well publicised.

The hacker, “Hacker Croll”, emailed stolen information relating to Twitter / Twitter personnel to famous tech blog TechCrunch – which published some of it.

Does that publication lay TechCrunch open to being sued by Twitter or anyone else?

There’s a good analysis of the US legal issues by Sam Bayard at Citizen Media Law Project which, after considering:

1. trade secret misappropriation under California law (publishing confidential company documents)
2. invasion of privacy for the publication of private facts (publishing sensitive or embarrassing personal information).
3. criminal law against receipt of stolen property under Section 496 of the California Penal Code,

concludes that, on the facts here at least, in the light of the US First Amendment protecting free speech, when publishing anything that would be classed as a "matter of public concern” TechCrunch are probably in the clear for the publication.

But that doesn’t mean other documents or information stolen can be safely published without liability; and it’s not certain whether there could be criminal liability for receipt (as opposed to publication) of stolen property.

Tags: Twitter, TechCrunch, USA, Improbulus, A Consuming Experience

ISPs / mobile networks: top speeds, "unlimited" usage - & consumer rights

Deutsch | Español | Français | Italiano | Português | 日本語 | 한국어 | 简体中文

Many ISPs in the UK try to win customers by claiming to offer:

1. Broadband speeds - "up to" (some big number) Mbps download speeds, and
2. Usage allowance / bandwidth - "unlimited" usage of their service i.e. downloads and uploads.

In both cases claims like these, which are very commonly found in advertising, marketing or promotional material, are misleading to consumers, because in practice:

1. Few customers can in fact achieve the top advertised "headline" speed trumpeted in the Internet service provider's marketing material.
   
   Translation of "up to X Mbps": a handful of customers manage to get this speed so you'll be darned lucky if you can get that matey, but that's the number we're putting out there anyway, to get you to sign up with us.
2. ISPs often engage in bandwith throttling behind the scenes, where they deliberately slow down the download speed for certain applications like peer to peer file sharing e.g. BitTorrent, or impose a speed limit on you just because they think you're using their service "too" heavily (e.g. Virgin Media throttle broadband speeds; also it seems BT do too, they certainly used to throttle P2P use.)
   
   Of course, they don't generally tell the customer they're throttling that they're doing it.
3. Upload speeds are often much slower than download speeds (e.g. through throttling) - yet few ISPs make it clear enough up front what their upload speeds are.
4. Almost invariably the claimed "unlimited" use is immediately emasculated by the small print, which imposes so-called "fair use" restrictions (euphemism if there ever was one!) - where basically the ISPs say that, even though they promised you an unlimited service and got you to sign a contract tying yourself in to them for a whole year (or whatever) on the basis of their claims, actually it's only fair that you shouldn't make full use of the service you thought you were supposed to be getting.
   
   In other words, in practice they impose a bandwidth cap on their customers.

So, many consumers take out contracts with ISPs based on those claims, only to find that their actual allowed monthly Net usage is in fact not "Unlimited", but is "Unlimited (and in small print) 'subject to fair use'" (or "reasonable use", whatever that means (the issue and possible solutions were discussed at a BarCampLondon3 session on fair use in the mobile context, you can see the video if you're interested). They end up getting charged extra for their "excess" downloads, or find their speeds are much slower than the maximum headline advertised speed, or they get throttled down, or all of those! To add insult to injury, they're stuck with it as they've been tied into a 12 month contract or longer.

To make matters worse, as mobile phone network operators increasingly try to compete for customers by offering data / mobile internet services they're also increasingly making similar claims in their own marketing - particularly regarding "unlimited" use which is in fact limited.

A. High broadband speed claims

Misleading broadband speed claims have received the most media publicity - and still are, e.g. the recent ruling by the UK Advertising Standards Authority criticising Virgin Media's speed claims, which was highlighted by UK comms regulator Ofcom.

Probably as a result of the greater publicity, some attempts have been made by official bodies to protect consumers - see my report on the broadband speed claims position in December 2007.

Subsequently, while I didn't blog it at the time, in June 2008 Ofcom introduced a "self-regulatory" voluntary Code of Practice on Broadband Speeds (PDF) for residential products, which fixed line ISPs can sign up to (if they wish).

1. What does the Broadband Speeds Code of Practice say?

Under this code (to paraphrase Ofcom's own words), ISPs are supposed to try their best to:

1. give prospective customers, at point of sale, an accurate estimate of the maximum speed that their line can support
2. clearly explain that the actual speed is likely to be lower than this maximum and outline all the factors that can affect speed (and ensure all sales and promotion staff properly understand the products they are selling so they can explain to their customers the meaning of the estimates provided at the point of sale)
3. resolve technical issues to improve speed
4. offer customers who are given an inaccurate speed estimate the choice to move onto a lower speed package when estimates given are inaccurate
5. provide consumers with information on usage limits and alert customers when they have breached them.

The good news - to date 43 UK ISPs, covering over 90% of broadband customers in the UK, have signed up to it. They're supposed to "try their best" to implement the measures set out in the code within 6 months after sign-up (see 6th Principle para 41 of the Code of Practice on Broadband Speeds ).

So you can:

1. check the list of signed-up ISPs to see if yours is included)
2. see Ofcom's advice for consumers on broadband speeds
3. read Ofcom's FAQ, and
4. read the code (or PDF version) or summary of the Code's 8 principles.

It's also useful to know that if you signed up e.g. for a 24 meg download package (offered by the likes of Be) and find that when they hook you up you can only get say 12 meg, you should be able to downgrade to their cheaper 8 meg package.

However, in my view there's some bad news too.

1. The Code only applies to fixed line ISPs, not data / mobile internet providers

Mobile network operators aren't covered by the voluntary code yet, see para 16, so Ofcom can't even tell them off if they mislead potential customers about speeds or usage allowances.

2. It's just voluntary "self-regulation" for ISPs

The Code is only voluntary "self-regulation". ISPs don't have to sign up to it. And they can effectively disavow it anytime they like, without penalty.

There's no comeback even if an ISP who agrees to follow the Code then breaks it. The ISP concerned can't be fined by Ofcom. A finger wave and slap on the wrist from Ofcom, tut tut ooh you naughty naughty boy, maybe (yeah that should really scare the ISPs), some bad publicity, perhaps - but ISPs have already had bad press about their real speeds/bandwidths not living up to advertised speeds/bandwidths, and if they're not bovvered by that, why should a voluntary Code make any difference?

Yes, I'm cynical about voluntary codes for ISPs. Why? Well, look at what happened with broadband migrations. Customers were supposed to be able to switch ISPs with minimal interruption to their Net service, but in practice the "losing" ISP dragged their heels and made it very hard for anyone to leave.

There was a "voluntary" code for that, too (the text of the old Broadband Service Provider Migration Code Of Practice is in Annex 4 of the Ofcom statement), but it just didn't work - so much so that eventually Ofcom had to officially regulate migrations by making a new regulatory rule, General Condition 22.

Even with the risk of being taken to task by Ofcom, some ISPs still cause problems with migrations - I know one of my previous ISPs did, and it wasn't even Prodigy (who were in the end fined for their continued breaches of GC22). To this day, Ofcom are on their own initiative monitoring the migration situation. And they're right to.

I'm worried that this voluntary code won't work either, and that all it'll do is just put off the time when Ofcom actually makes proper rules to protect consumers properly. Which, perhaps, may be why ISPs agreed to it?

3. Even as a voluntary code, it doesn't go far enough

It's not just that the Code is toothless, they've taken away the dentures too.

The code's been watered down by lots of "best endeavours" weasel words (instead of "will") all over the place - which basically means that the signatories are just signing up to something like this:

"We voluntarily agree (which means we can stop agreeing any time we like) that we'll try our best to do this, that or the other - but we won't actually guarantee (even on a voluntary basis only!) that we'll do it".

So they're not even agreeing to do certain more consumer-friendly things, but just that they'll try to do them.

The code omits important consumer protections - notably ones which the Ofcom Consumer Panel had asked for in their 2007 letter to Ofcom:

1. that the code should be mandatory for all ISPs, and legally enforceable
2. that ISPs should be required to contact the customer 2 weeks after installation to tell them the actual (rather than estimated) maximum line speed supported by the individual customer's line, and
3. that the customer should be able to switch packages without penalty and, if the actual maximum line speed is significantly lower than the package they signed up for, also have the option to terminate the contract penalty-free and move to another broadband provider.

Now the Code does say that ISPs should offer you the chance to change to a lower speed package if your actual speed is "significantly" lower than the estimate you'd been given (see para 31 a iv). But it ought also to say that disappointed subscribers should be offered a lower price package; I assume lower speed means lower price, but that really should be spelled out (especially given that Ofcom felt it necessary to spell out "comply with the spirit" and "don't abuse the trust of vulnerable consumers"! See 4 below for more on that).

The failure to include point 3 is particularly disappointing. If, wanting high speeds, you signed up for what you thought was a 8 MB service, and you only got 2 MB, would it really be much consolation to find you're stuck at 2MB for a year, even at a lower price? Personally, I'd want to move ASAP to an ISP that provided a true 8 MB service at the same or even higher prices.

(The OCP also suggested that Ofcom’s website should give information to consumers on how home broadband setups can influence the speed consumers actually receive can influence the speed they actually receive, in the form of a clear checklist of potential problems within the consumer’s home that can slow down their broadband speeds, explaining to consumers how to check factors such as wireless networks, low quality wiring, interference from electric appliances and the speed and health of their own computer, and how to make any necessary changes to improve their broadband speeds. However, Ofcom don't seem to have taken up that suggestion even though they're not averse to producing consumer guides as such, e.g. their guide to mobile roaming.)

Despite the Code's shortcomings, the Ofcom Consumer Panel welcomed the code and told ACE that it felt "that its views were taken into account when Ofcom drew up the Code of Practice with ISPs. We were not otherwise consulted, but were shown the Code of Practice before it was published."

4. Is something not quite right, in fact?

I was taken aback, and found it somewhat alarming, to see that, even in a purely voluntary code, Ofcom should feel it necessary to spell out (my emphasis) that :

1. "...in honouring not only the letter but the full spirit of this Code, words, terms or provisions should not be so narrowly interpreted so as to compromise the ISPs’ commitments. Specifically, ISPs should use common sense in abiding by and interpreting this Code." (para 8)
2. ISPs should "use their best endeavours to procure that all of their representatives" should "Not abuse the trust of vulnerable consumers or consumers that otherwise appear uninformed about their services or products e.g. those who are elderly or whose first language is not English".

Something just doesn't feel right about that. If it's only voluntary, why should ISPs need to be asked to keep within its "spirit"? As it's not a legally-enforceable rule, there's no sanction even if they don't follow its letter, never mind its "spirit".

To me, it's a disturbing sign of something very, very wrong with sales and marketing practices in the ISP industry that Ofcom should actually consider it necessary to warn them not only to abide by the spirit of the Code, but also to use their common sense (when it's not even Stupid Aid Week) and not to abuse the trust of vulnerable consumers! If Ofcom feel that they have to say that, surely matters have gone beyond the stage where they can be repaired by a voluntary code - isn't a mandatory, legally-binding rule what's truly needed?

5. Next steps

At least Ofcom say they'll keep an eye on the ISPs, including "mystery shopping", to see how well they keep to the code. If they discover problems, I hope they won't wait too long before making formal rules to force ISPs to stop misleading customers.

The Ofcom Consumer Panel told ACE "The Panel is also happy to see that the Code contains provisions for monitoring compliance. You mentioned the likelihood of formal regulation; the Panel will be watching closely to see how effective the Code is in improving the situation for consumers, and we will not hesitate to call for formal regulation if the Code is shown not to be working".

It's good that "Within the next few months", Ofcom plan to publish "the most comprehensive broadband speed survey ever completed in the UK" involving millions of tests looking into how speeds and service varies by region, choice of ISP and by time of day. It'll be useful to have the comparative info.

But, to be truly useful longer term, that info has to be kept updated - do Ofcom intend to do that, will they have the resources to do so?

As you can tell, I am concerned that consumers may continue to be misled and taken advantage of until the ISPs are made to mend their misleading marketing ways, whether by formal Ofcom regulation or by some brave and persistent consumer willing to take them on in the courts.

Which leads me to what, if anything, consumers can do about it. I'll throw out some ideas in C below.

B. "Unlimited" usage claims

The next battleground will probably be "unlimited" use claims (as well as speed / use claims by mobile internet providers).

This issue's been topical for a while - see e.g. this video and slides from a 2007 BarCampLondon3 discussion on "fair use" in the mobile data context.

Recently there was thread on the Open Rights Group discussion mailing list criticising the practice and suggesting possible ways to tackle the problem.

Glyn of ORG drew attention to an October 2008 news report of research showing that (from original uSwitch press release; my emphasis):

"nine out of ten consumers do not understand the limits on their service. Some 6.2 million wrongly believe there is no cap on their usage, while one million have almost reached or exceeded their limit in the last year as a result of their confusion. uSwitch.com suggests some providers are misleading consumers by stating that their packages are unlimited when in fact they are not, as fair usage policies allow them to place caps on a customer's service if their usage is deemed to be excessive."

However, unlike with broadband speed claims, the powers that be really don't seem to want to clamp down on "unlimited" usage claims made by ISPs or mobile phone network providers.

ASA. For instance, just last month the UK Advertising Standards Authority said Vodafone's "Unlimited" ads didn't violate the CAP code because:

"the ads made clear that a fair-use policy applied to the service and the level at which the allowance was set. We noted the information provided by Vodafone demonstrated that only a very small proportion of their customers had exceeded the fair-use policy limited and that action was likely to be a request to moderate their usage in the first instance. We acknowledged that the vast majority of customers used only a small amount of the available allowance and concluded that the existence of a fair-use policy did not contradict the claim "unlimited mobile internet".

See Tom Morris's trenchant critique of Vodafone's arguments, which the ASA had unquestioningly accepted.

Let's put it another way - suppose a bank offered an "unlimited" overdraft, and in the fine print said it was subject to "fair use restrictions". So if you actually tried to overdraw over a certain limit, they'd say that actually you couldn't, even though it was advertised as "unlimited". And that it was fine for them to advertise it was unlimited because (unrealistically in today's climate perhaps) in fact very few people chose to overdraw by very much at all. Would that be all right?

Anyway, unless some brave soul wants to try for a judicial review to overturn the ASA's decision, that seems to be that.

The Broadband Speeds code does cover "fair use" to some extent - but only to ask ISPs to provide information on their websites about usage limits.

It says in this context (and I quote, with my own added emphasis and link, and some comments in square bracketed italics) that:

"33. ISPs must use their best endeavours to set out clearly, and in a prominent place on their websites (e.g. within help or FAQs sections), information relating to their respective policies on fair usage; traffic management and traffic shaping to cover, at a minimum, the matters set out below.

Fair usage policies and usage limits

34. The ISPs should publish, in a clear and easily accessible form, any criteria they use for determining breaches of its fair usage policy (e.g. total usage, specific percentage of users etc).

35. The ISPs should publish, in clear and easily accessible form, the actions they intend to take should a user exceed a usage limit or breach a fair usage policy (e.g. the size of any extra charges or nature of any speed restrictions etc).

36. Where it is reasonably possible to do so, ISPs should provide a means by which users can measure their usage over the relevant billing period.

[Definitely weaselly wordy - it is always "reasonably possible" for ISPs to provide users with a way to measure their usage, as all ISPs have to do is give their customers a link to download something like the free Netmeter.]

37. ISPs in possession of a user’s email address should provide users with email notification when users exceed a usage limit or breach a fair usage policy which informs users about the precise consequences of doing so, e.g. additional costs, information on speed restrictions imposed etc.

[Err, when would an ISP not have the user's email address? You have to give an email address when you sign up, even if you choose not to get email through their domain e.g. btinternet.com. And, surely ISPs should be required to give the email notification immediately the limit's exceeded, not e.g. a month later when the poor user has racked up a fortune in extra charges?]

38. The ISPs should also consider providing advance notification to subscribers approaching a usage limit.

[Note, this means that the ISPs voluntarily agree, with no sanctions if they fail to do this, to try their best to consider providing advance notification. How hedged about and toothless is that?]

Traffic management and traffic shaping

39. Where ISPs apply traffic management and shaping policies, they should publish on their website, in a clear and easily accessible form, information on the restrictions applied. This should include the types of applications, services and protocols that are affected and specific information on peak traffic periods."

In practice, how readily available is that information? I'd be interested to know - I've not had time to check out various ISPs' websites to see.

Also, surely what's important is that this kind of important information should be given to potential customers before they sign up - or "at the point of sale", as Ofcom say in relation to broadband speeds.

Surely it's too late to find out, after you've signed up to a year's contract, that in fact you're restricted in how much you can use a service that you'd thought was "unlimited".

I also object to the phrase "fair use"; many people won't understand what that means in the ISP context because the ISPs' usage of that phrase undermines the natural meaning of those words.

Plus, "Fair use restrictions apply" or the like are usually in much smaller print in the ads, while "UNLIMITED" is emphasised. Which is definitely not fair on consumers, in my view.

C. Is there anything consumers can do?

Broadband Speed code. The Broadband Speed code, though voluntary, is out there now. So if you notice ISP advertising / promotional material or ISP websites that don't comply with the Code, whether on the broadband speeds or fair use front, and the ISP is on the the list of signing ISPs, you could report it to Ofcom (e.g. by phone, scroll down that page for the number), giving them the full details.

For starters, I very much doubt that ISPs "make reference to the Code within the sales process and provide a full copy of the Code through an easily accessible link on their respective website" (8th principle, para 44 of the Code) - Be Broadband certainly didn't when I moved to them recently, even though they signed the code. (I guess they're making the most of that 6-month period they've been given by para 41 of the Code to "use their best endeavours" to implement its measures!)

However, as mentioned it's purely a voluntary Code so there's little Ofcom can do about it. But if enough breaches are reported, maybe they'll finally make official rules about it, with teeth. We can but hope.

What else can consumers do? You may have rights under consumer laws too.

CPRs. Could the ISP concerned be reported to the Trading Standards authorities and perhaps too the Office of Fair Trading, on the basis that advertising "Unlimited" with smallprint "fair use" restrictions is misleading and an unfair commercial practice under the Consumer Protection from Unfair Trading Regulations? (see my separate post on the CPRs, which enable authorities to take action against those who trade unfairly).

The uSwitch research suggested that 90% of consumers are in fact misled.

However, it seems (see my CPRs post) that the enforcing authorities can if they wish effectively hand over their responsibilities to bodies like the Advertising Standards Authority.

Given that the ASA have already ruled that Vodafone's "unlimited" ads aren't in breach of their own code, resource-poor authorities may well point to that adjudication as reason enough not to take any further action under the CPRs themselves.

The ISPs can say that they've signed up to voluntary self-regulatory codes (i.e. the ASA's advertising codes - CAP Code and Broadcast Advertising Code - and the Broadband speeds code), so trading standards authorities shouldn't do anything further like take direct action against the ISP.

Of course, more people could complain to the ASA, but unfortunately given what they've said in relation to Vodafone they may not be willing to take any further complaints.

I don't know enough about this to know if there's any way of overturning the ASA's ruling. It's particularly disappointing that they've decided "unlimited" means "limited", when in the Vodafone case the complaints were actually from real live consumers. (In many ASA code breach cases, it seems that the complaints are often made by business rivals like other ISPs or mobile network operators!)

What if an ISP or mobile phone company has actually violated one of those codes? Could they be done for that under the CPRs (see my separate post)? Well, it'll only be a breach of the CPRs on their part if the commitments in the code were firm and "not purely aspirational".

Given that the Broadband Speeds code is hedged about with "best endeavours" (instead of "firm" commitments) all over the place, it seems virtually impossible for any ISP to breach that code in such a way that they could actually be held responsible for breaching the CPRs.

Is that why the Broadband Speeds code (which after all is purely voluntary and carries no penalty for breach as far as Ofcom is concerned) was watered down so much - in order that ISPs can use it as a shield against any accusations of breaching the CPRs? Who knows. Very clever of them, though, if so.

Unfair consumer contract terms? Would it be possible to say that the ISP's standard "fair use" restriction is an unfair consumer contract term and that therefore you as a consumer can't be held to it? (see the Consumer Direct, OFT and BERR notes on this area).

Usage allowance is probably a "core term" that generally can't be challenged, but couldn't it be said that "unlimited subject to fair use" has not been expressed in plain intelligible language (the widespread public confusion about it shown by the uSwitch consumer survey is surely proof enough that it's not intelligible), and therefore consumers can't be held to it?

Or could it be said that the "fair use" restriction is a term which tries to exclude the legal obligation of the ISP to provide an "unlimited" service, and therefore the consumer can't be held to it? (Complaints to Ofcom about unfair terms are not unprecedented.)

I don't claim to be a consumer law expert, I'm just tossing out a few ideas which may be worth considering if someone wants to have a go at taking things forward themselves. It'll be interesting to see how all this develops. I hope at least that this post will help to raise consumer awareness of the issues.

Note

This post only provides general information and reflects my personal views and speculations on some of the issues raised; it is not legal advice of any kind.

If you have problems with your ISP or mobile network provider, you should consult a suitably-qualified expert in relation to your individual position e.g. at Consumer Direct, or talk to Ofcom etc - see BERR's list of consumer support resources.

Tags: advertising, broadband, broadband speeds, fair use, fair usage, unlimited, ISPs, ISP, broadband providers, Ofcom, internet connection, broadband service, internet access, Net access, consumer rights, consumer law, ASA, Advertising Standards Authority, Improbulus, A Consuming Experience

Unfair commercial practices, consumer protection CPRs: internet shopping, restaurants - "free", "optional" & other misleading claims

Deutsch | Español | Français | Italiano | Português | 日本語 | 한국어 | 简体中文

'If you sign up for this service or buy this product, you'll get this other stuff "free"!' 'The service charge in this restaurant is "optional"!' (And, perhaps, the good ol' 'Your broadband or mobile internet data usage allowance is "unlimited"'?)

How often have we consumers been fed that sort of line in advertising or marketing material, when in fact it's misleading - and the "free" product is in fact "paid for" by doubling the price of the first one, or the service is limited, or there are hidden extra charges?

This sort of thing really shouldn't be allowed.

And, in many situations, in the UK and Europe, it isn't - thanks to the EU Unfair Commercial Practices Directive (full name, if you must know: Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council - phew! I'll just call it the UCPD...)

It's just that most consumers don't know much about the UCPD yet, so retailers or providers have been able to get away with trading practices that are unfair to consumers.

To try to help raise awareness of these issues, this post outlines some key points for consumers / users resulting from the UCPD - with a particular emphasis on things technology and food, given my particular interests, but the points apply to all sorts of areas.

The UCPD was implemented in the UK through The Consumer Protection from Unfair Trading Regulations 2008, 2008 No. 1277 (Copy on Statute Law Database) - I'll call them CPRs for short, and I make no comment about whether CPR is what this country's consumer laws needs!

The CPRs took effect in the UK in May 2008, but they have received (in the scale of things) relatively little publicity, even though they represented the most far-reaching change in UK consumer law in years.

A. What are The Consumer Protection from Unfair Trading Regulations 2008 about?

As the Office of Fair Trading puts it:

"The Regulations introduce a general duty not to trade unfairly and seek to ensure that traders act honestly and fairly towards their customers."

To quote the BERR's basic guide to the CPRs for businesses, the CPRs will generally (my emphasis):

"ban traders in all sectors from using unfair commercial practices towards consumers. They set out broad rules outlining when commercial practices are unfair.

These fall into four main categories:
• A general ban on conduct below a level which may be expected towards consumers (honest market practice/good faith). This is intended to act as a “safety net” protection for all consumers.
• Misleading practices, like false or deceptive messages, or leaving out important information.
• Aggressive sales techniques that use harassment, coercion or undue influence.

For a practice to be unfair under these rules, they must harm, or be likely to harm, the economic interests of the average consumer. For example, when a shopper makes a purchasing decision he or she would not have made had he or she been given accurate information or not put under unfair pressure to do so.

• In addition, the regulations ban 31 specific practices outright" (see the list of 31 practices).

Commercial practices. What do commercial practices cover anyway? To quote from the detailed joint OFT / BERR guidance on the CPRs p.64, "Commercial practices may include matters such as advertising, sales, supplies and post-contractual matters such as after-sales services and debt collection."

So how traders treat their customers after the sale is covered too - a very important and welcome extension of consumer rights.

Retail sales / supplies of many types. Note that the CPRs extend to online shopping over the Internet, as well as high street and traditional mail order sales; and they cover the supply of services (e.g. internet or mobile phone services) as well as physical goods.

Penalties? A trader who fails to comply with the CPRs could be investigated by bodies such as the local authority's Trading Standards service, the Department of Enterprise, Trade and Investment in Northern Ireland or the Office of Fair Trading - and could be prosecuted and fined.

That's right - an unfair commercial practice may constitute a criminal offence, which could mean (depending on its exact nature) up to 2 years' imprisonment and an unlimited fine for the offending trader.

And if the offence was committed by a company, any director or manager who agreed to or connived in the unlawful practice may be guilty of a criminal offence too - and similarly if the practice was attributable to the director or manager's neglect.

However, the trader can't be prosecuted more than 3 years after the event, or if the prosecuting authority leaves it for more than 1 year after discovering the offence before trying to prosecute.

B. Misleading practices

It's worth highlighting that a practice is considered misleading if (my emphasis, quoted from rule 5):

"it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise."

From paragraph 4, this includes giving false information on things like the existence or nature of the product, the consumer's rights, and the main characteristics of the product (including its availability and benefits, usage, specification and results to be expected from use of the product).

And also a practice is misleading if its overall presentation is likely to deceive the average consumer, even if the info given is factually correct.

But, in either case, it won't be considered "misleading" unless it was likely to cause the average consumer to e.g. sign up for the contract or buy the product.

Unfortunately, there seems to be a general assumption that the "average consumer" is "reasonably well informed, reasonably observant and circumspect" - but, hey, if they were, they wouldn't be deceived and wouldn't need to be protected by the law, would they?? (Though there is protection for certain sub-groups if the practice was targeted at them. Personally I think vulnerable groups should be protected even if the practice was aimed at consumers generally.)

Misleading omissions are also banned, i.e. something which omits or hides material information or provides it in a way which is unclear, unintelligible, ambiguous or untimely given the factual context (including all the features and circumstances of the commercial practice, and limitations of space and time e.g. ad posters). But again only if they were likely to influence the consumer's decision.

C. Banned practices list

31 commercial practices are specifically blacklisted - basically, the list is of stuff that's considered so bad that it's banned outright.

Just to pick out a few, they include, as well as "pyramid schemes" (no. 14) and "Congrats you've won (or can win)!" (19 & 31) prize draw scams:

5. "Special offer" – when not actually in stock.

7. False "Limited time only" offers.

15. Bogus "Closing down sales".

20. Describing a product or service as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.

26. Pestering the consumer - making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified to enforce a contractual obligation.

27. Creating extra (unnecessary) paperwork - requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights.

29. Inertia selling - sending you stuff you didn't ask for, then demanding payment or the return of the product.

However, the intention is that "buy one get one free" deals (BOGOF) will not generally be banned.

Note that any practice on the list is banned, period. A trader who engages in any of them will breach the CPRs, whether or not a consumer was actually influenced or deceived by the practice.

D. Pricing practices

On the pricing front, the BERR have produced a very helpful detailed guide "Pricing practices guide: guidance for traders on good practice in giving information about prices", which has received even less publicity than the CPRs themselves. Possibly because, as at the date of writing this, it's inexplicably not linked to from the BERR's main CPRs page, but appears only on the BERR's general publications page.

The reason they put out the guide is that the CPRs ban traders from misleading consumers about pricing or how prices are calculated, and also ban the omission (on Websites and the like, which invite consumers to buy), of information on the price or on any related charges including taxes, delivery and postal charges, unless these are already apparent from the context, where any such action or omission would cause, or be likely to cause, the consumer to take a different transactional decision (e.g. if the carriage costs are high, you might buy from another site with a slightly higher price for the goods but much lower postage charges).

Anyway, there's lots of useful information in that guide about the kinds of pricing practices, e.g. ways of presenting information on prices to potential customers, offers, promotions or "special" prices, price comparisons, call-out charges, including VAT clearly, etc etc, that BERR consider are or are not acceptable under the CPRs. So it's worth a look if you think you've been misled or unfairly done by in relation to goods or services you bought.

Like the other guides produced by BERR and the OFT, it only represents their views on the CPRs, and if the legislation comes before a court it's possible that a judge may take a different view, but they do constitute the most authoritative views we have on the subject at the moment.

E. Some particular points of interest

Here are some highlights from some detailed guidance to the CPRs jointly produced by BERR and the OFT, and the pricing practices guide.

1. Online shopping - are delivery charges and VAT extra, and if so how much?

This has always been a bugbear of mine, as many sites don't make clear what their delivery terms are, and you have to email or ring them to ask. Well, it seems that failing to provide obvious links to full delivery information may be considered an unfair commercial practice.

For computer online sales, p. 39 of the detailed guidance from BERR/OFT suggests that websites should provide information, in clearly indicated links from product page, on various matters including the full price (inclusive of taxes and any freight or delivery charge) if this was not given on the main page, and delivery and payment arrangements as well as the complaints/after-sales procedures. See also 2.2.6 of the Pricing practices guide.

I noticed a few months ago that Amazon UK had changed their website so that shipping costs for Amazon Marketplace items are shown on the main Amazon page for the product itself. I wouldn't be surprised if that was because of the CPRs. Kudos to Amazon and their eagle-eyed lawyers, I say!

And yes, that's right - it does seem that this means that websites which don't make provide easily-accessible delivery charges information etc will risk infringing the CPRs. Which is probably a lot of websites!

2. Persistent email or phone etc marketing

If a business keeps spamming you, or making unwanted marketing calls to you, you might be able to get them stop by telling them it's a breach of the CPRs - and if they don't, you can report them to Trading Standards.

The detailed guide at p. 26 even suggests that if you've signed up for the Telephone Preference Service that in itself is probably enough of an indication that any calls will be unwanted.

3. Restaurants, hotels - "optional" service charges

No this isn't tech-related, but I'm a foodie so this is for other foodies who might be interested!

Let me just quote 2.2.14-15 of the pricing practices guide (addressed to traders), which speaks for itself (my emphasis):

"You should not include suggested optional sums, whether for service or any other item, in the bill presented to the customer. If your customers in hotels, restaurants or similar places must pay any non-optional extra charge, for example a “service charge”:
(a) you should incorporate the charge within fully inclusive prices wherever practicable; and
(b) you should display the fact clearly on any price list or priced menu, whether displayed inside or outside (for example by using statements like “all prices include service”). It may not be practical to include some non-optional extra charges in a quoted price; for example if you make a flat charge per person or per table in a restaurant (often referred to as a “cover charge”), or if you levy a minimum charge. In such cases the extra charge should be shown as prominently as other prices on any list or menu, whether displayed inside or outside the establishment.

This does suggest that lots of restaurants are breaching the CPRs by including suggested "optional" service charges.

I'd be interested to know if anyone tries to call a restaurant out on this and reject a bill that automatically includes "optional" charges, on the basis of the CPRs! But, technically, it seems that you are within your rights to.

4. Businesses' online marketing / promotional practices

Judith Lewis has previously pointed out some other practices by traders (writing rave reviews of their own products pretending to be a customer, etc) which would fall foul of the CPRs.

5. "Unlimited" broadband, high speeds that aren't?

In a separate post I discuss whether certain advertising practices that try to get consumers to sign up for broadband (or mobile broadband / data) internet services by advertising unlimited usage subject to "fair use", or advertising broadband speeds higher than most people can get, might be unfair commercial practices.

F. Problems with the CPRs

In my view there are 2 big problems with the UK's CPRs, as far as consumers are concerned:

1. Individual consumers have no direct claim against the trader, and
2. The official bodies who are meant to enforce the CPRs can effectively refuse to take any criminal or even civil action to stop unfair commercial practices, if they can say that there are other ways of dealing with them.

1. No direct consumer rights

Taking problem no. 1 first, I think the biggest shortcoming of this law is that, unfortunately for us UK consumers (but no surprises there), the UK government chose to implement it in such a way that consumers can't sue the guilty trader direct for compensation. Whereas, in some other EU countries like Ireland, consumers can.

It's some consolation I suppose that, as the National Consumer Council reported, the Law Commission note that "Currently the regulations provide no private rights to consumers, who will have to rely on current private law doctrines for redress" - and the Law Commission are now going to start a project to "consider how far a private right of redress for unfair commercial practices would simplify and extend consumer law" (see project 5, pg.8 of their Tenth Programme of law reform published in June 2008). (The NCC by the way has recently merged with Postwatch and Energywatch to become Consumer Focus; their CEO Ed Mayo even has a blog).

But these things take ages (the NCC item said "No timetable has yet been set" - not a good sign), so it'll be a few years at least before victims of unfair trading practices can do anything about it direct - and who can tell which way the Law Commission will go, who knows if they'll decide whether consumers should have a direct right or not?

So, UK consumers have to rely on reporting the matter to their local Trading Standards authority - and hope that overstretched, under-resourced departments, who may also not have quite the same personal incentive as the directly-affected consumer to take the offending trader to task, will receive enough complaints about a particular trader that they decide to take action.

I have no idea if a consumer (who had the time, money and commitment!) could bring a private prosecution against a trader for breach of the CPRs. There is a right of private prosecution in the UK in many cases - I just don't know if this is one of them.

2. Handing off "enforcement" to industry bodies?

As regards problem no. 2, the best way to make my point is to quote from pgs. 51 and 52 of the detailed guidance (my emphasis):

"11.1 Local Authority Trading Standards Services (TSS), the Department of Enterprise, Trade and Investment in Northern Ireland and the OFT have a duty to enforce the CPRs. This does not mean that (civil or criminal) enforcement action must be taken in respect of each and every infringement. Instead, enforcers should promote compliance by the most appropriate means, in line with their enforcement policies, priorities and consistent with available resources.

11.2 Enforcers can use a range of tools to ensure that businesses are complying with CPRs. The main options, which are explained below, are:
• education, advice and guidance
• established means
• codes of conduct
• civil enforcement
• criminal enforcement.

There are alternative well-founded and effective systems of regulation (including self-regulation) in place in the UK. If enforcers are satisfied that complaints and cases are clearly within the scope of these systems and can be adequately dealt with by them, they will be able to refer such complaints and cases to the relevant body (to ensure that businesses comply with the CPRs)...

11.5 The OFT will generally seek to obtain compliance by education, giving advice and guidance in the first instance unless circumstances indicate that enforcement action is the appropriate frst step which may include a criminal investigation and prosecution. Other enforcers may have their own enforcement policies in this regard.

11.7 As under the previous consumer protection regime, the Advertising Standards Authority (ASA) and PhonepayPlus are considered to be established means in the areas described below [i.e. advertising and premium rate telephony respectively], and appropriate cases falling within their areas of expertise will usually be referred to them for action."

So, in a nutshell, in industries where there is a self-regulatory system or voluntary code of conduct, it seems that it's possible for the official bodies to effectively hand over responsibility to the trade body, or point to the existence of some self-regulatory code.

You'll see that civil and criminal enforcement, which are the most effective measures as far as consumers are concerned, come the very last in the order of priority in 11.2.

This is obviously at least partly a resources-influenced decision. The explanatory memo to the CPRs says in para 70: "It would also ensure that the resource implications of enforcement on the OFT and other enforcers are minimised as a wider range of bodies would be able to secure the cessation of unfair commercial practices, especially misleading advertising."

But this bothers me. Why? Because I feel it makes the CPRs relatively toothless. I believe it would be much better for consumers if enforcement had to be by an independent official regulatory authority, and if the code was produced by an independent regulator. Isn't consumer protection the whole point of this legislation?

For instance, just last month the UK Advertising Standards Authority said that Vodafone's "Unlimited" ads didn't violate their CAP code because their broadband ads "made clear that a fair-use policy applied to the service and the level at which the allowance was set" - for more details see my separate post on certain common broadband / mobile internet advertising claims.

Furthermore, where there is a self-regulatory code, the guidance says:

"11.14 A trader who has agreed to be bound by a self-regulatory code of conduct may breach the CPRs if he fails to comply with commitments in the code which are firm, capable of being verified, and not purely aspirational, when he has indicated in a commercial practice that he is bound by the code and consumers’ transactional decisions are (likely to be) affected by this.

11.15 The two prohibitions above are enforceable only via injunctive civil action and are not subject to criminal sanctions."

Doesn't this suggest that a trader who has signed up to a voluntary code but didn't follow it can only be done for a breach of the CPRs if the code contained "firm" commitments on the part of the signatories (and provided the consumer's decision was probably affected by the trader saying he'd signed up to the code)?

Surely this means there's potential for abuse. I know that some industry bodies do police their own very closely and well in order to preserve the reputation of the industry as a whole, but isn't it possible that businesses in some sectors could get together to produce a "voluntary code of conduct" to point to (just to get the OFT and trading standards bodies off their backs), making sure that the code definitely doesn't contain anything that could "promote non-compliance" with the CPRs, but only contains vague statements that are purely aspirational and aren't "firm" (e.g. "we'll try but we won't promise")?

And how likely is it anyway, in certain industries e.g. internet / phone services, that the consumer's decision would be influenced by the trader saying he was bound by a voluntary code (and that therefore the trader could be done for not following the code)?

Anyway, given that marketing and advertising are the main areas where the CPRs are likely to bite and that what the ASA says seems to go as far as the CPRs are concerned, it's worth noting that the ASA updated their CAP Code (British Code of Advertising, Sales Promotion and Direct Marketing) for non-broadcast advertising to take account of the CPRs (see the changes for the CPRs). They also recently consulted on proposed changes to their Broadcasting Code of Advertising Practice to bring the BCAP into line with the CPRs (see their consultation documents and suggested BCAP changes).

So the revisions are worth a look if you're thinking of complaining to the ASA - though not that the BCAP changes hadn't come in yet, as at the date of writing this post.

G. Further info / resources / links

1. The Unfair Commercial Practices Directive.
2. The CPRs as at May 2008 (any later changes won't be reflected in this version or the SLD version), and explanatory memo. See also BERR's UCPD / CPRs page.
3. Basic guides for businesses (but useful for consumers too):
   1. BERR's A basic guide for business on the CPRs.
   2. Trading Standards' guide to CPRs
   3. Business Link's basic guide on CPRs
   4. ASA's PDF outline of effects of CPRs, and slides
   5. Consumer Protection from Unfair Trading Regulations: an OUT-LAW guide plus their report of the first CPRs enforcement order
4. Detailed joint OFT / BERR guidance on the CPRs - very clear, has some very helpful examples of the sorts of situations which they consider would breach the CPRs.
5. BERR's "Pricing practices guide: guidance for traders on good practice in giving information about prices"
6. ASA's CAP code (with changes); and BCAP codes (different ones for radio and TV) with proposed BCAP code changes.
7. Consumer support - find your nearest Trading Standards office; see list of BERR's consumer resources.

Note

I hope that the points made in this post will be of interest to consumers, but please note that this post only provides general information and reflects my personal views and speculations on some of the issues raised; it is not legal advice of any kind. I don't claim to be a consumer law expert, I'm just tossing out a few ideas which may be worth considering if someone wants to have a go at taking things forward themselves.

If you have problems with any trader, you should consult a suitably-qualified expert in relation to your individual position e.g. at Consumer Direct, and see BERR's list of consumer support resources.

Tags: unfair commercial practices, consumer protection from unfair trading regulations, consumer rights, consumer law, misleading claims, online shopping, spam, advertising, Advertising Standards Authority, Improbulus, A Consuming Experience

UK Police National Legal Database: is it legal, what to do etc

Deutsch | Español | Français | Italiano | Português | 日本語 | 한국어 | 简体中文

Do you sometimes wonder if something is legal or not, or what to do in relation to an incident? I just found a very useful searchable Police National Legal Database (by area), for the UK only, when I was trying to find out info for a friend whose wing mirror got clipped by some b*^%&*# who tailgated my friend first, overtook in a single lane, but didn't stop, not even to see if his own car had been damaged. (The answer: report it to police in 24 hours if there was damage. It was only a scratch/chip so my friend isn't going to bother even though my friend took down his registration number and noted the time and place, as it's unlikely they'd prosecute anyway.)

I'm blogging about the PNLD because as well as generally useful information like:

• what if someone breaks into your home
• what's citizen's arrest
• people trying to "buy" votes
• criminal records checks, etc

- there's all sorts of interesting stuff on there which is relevant to the internet, databases and digital rights, even things which really aren't crime-related matters, which are mostly written very clearly and concisely - e.g. on:

• what's a subject access request (and the Police National Computer)
• tips on buying goods over the Net (including a link to the official Rip-Off Tip-Off site to report dodgy websites)
• internet or mobile phone text SMS scams, phishing
  
• the legal position if you find someone's put a photo of you online without permission (not hugely helpful here, but I guess it depends on the individual situation)
  
• reporting hate sites.

And, err, to pass the time (or something), there's "Question of the Day" - like "Can I shoot the birds in my garden?" (I'm not joking!) There's also Can I move a bird's nest - that's the Wildlife & Countryside Act, wouldja believe - and interesting tidbits like Ages - when are you old enough (5 for a premium bond in the child's name, 10 to be held criminally responsible etc). A gold mine for fans of trivia and "interesting facts", really it is. Fun as well as useful! No RSS feed for "Question of the Day", alas - maybe they should introduce one.

You can also view queries by category (e.g. internet, data protection), and even ask a new question if yours hasn't been answered. I imagine all new answers will then be added to their database, judging by some of the ones I've seen which seem to overlap a little or are shall we say "interesting", like Who can play Father Christmas at a school or local fete! I've not tested how quickly it takes them to answer a question, but I plan to.

A niggle: they don't tell people that they can sue spammers, in their tips on stopping spam - and surely they should at least point out that it's a criminal offence in the UK to send spam?

Cynical me didn't think I'd say this of a UK official body's online service - but really, whoever did it and is answering questions on it: good job!

(Just to repeat - it's only on the position in the UK, not the USA etc.)

Tags: useful, legalities, PNLD, police national legal database, crime, criminal law, trivia, interesting facts, Improbulus, A Consuming Experience

Attend Neil Gaiman discussion for free!

Deutsch | Español | Français | Italiano | Português | 日本語 | 한국어 | 简体中文

If you're a fan of writer Neil Gaiman (as I am, I rarely buy books but I have nearly all of his), you can get a free ticket to a discussion Piracy vs Obscurity - An audience with Neil Gaiman on Friday 24 Octoher 2008, 7-9 pm in London, just by joining the Open Rights Group between now and the event. It may particularly be of interest to writers and authors.

But you need to be quick - as I write there's only 7 free tickets left for new supporters (and 7 for existing ones who can attend for a fiver). It was open to the general public too, at £10 a head, but that's sold out now.

I'm a member of ORG, myself, and it's well worth it at only £5 a month for a year if you care about your civil liberties in the digital age and want to help try to ensure that:

• state and business powers in relation to things digital (e.g. CCTV surveillance of all citizens' traffic movements, or monitoring all websites you visit just to show you "more relevant" ads), and
• on the other side of the coin, digital restrictions on our rights as citizens and consumers,

will be sensible, balanced, proportionate and properly informed, taking into account how technology actually works in practice and its true possibilities and limitations - rather than being effectively dictated to politicians, some of whom barely know how to turn on their computers or program a video (granted, I struggled with some VCRs myself!), by those who have the most money and perhaps their own commercial or other interests to serve.

The details from the Eventbrite sign up page (via the Open Rights Group blog post mentioning the event):

Piracy vs Obscurity - An audience with Neil Gaiman

Friday, October 24, 2008 from 07:00 PM - 09:00 PM (GMT), London

Neil Gaiman, prolific creator of prose, poetry, film, journalism, comics, song lyrics, and drama, is known as one of the world's top ten living post-modern writers. He is also patron of the Open Rights Group (ORG). In this, the first public appearance of his Graveyard Book UK tour, he invites fans and ORG supporters to discuss piracy from the perspective of a creator, what it means to be one of the tribe of readers, and why most people discover their favourite authors for free.

Entry to this special event is free to new supporters of ORG who join between now and the event. Existing ORG supporters will be charged a discount rate of £5 and the general public will be asked for the full price of £10. Click here to join ORG.

Attendees will receive an A3 poster celebrating the publication of Neil's latest work, The Graveyard Book, and a chance to win a signed copy of the book.

Agenda

19.00 - Doors open. We'll welcome you into the crypt with wine and nibbles.

19.30 - Neil's talk starts and will be followed by an extended Q&A

21.00 - The talk finishes and all attendees are invited for a drink to the private upstair rooms of an adjacent pub, The Three Kings.

Tags: Open Rights Group, ORG, Gaiman, Neil Gaiman, civil liberties, authors, writers, writing, Improbulus, A Consuming Experience

Is privacy dead? RSA discussion, 19 June 2008

Deutsch | Español | Français | Italiano | Português | 日本語 | 한국어 | 简体中文

Some (very selective) notes and quotes from an excellent session on "Private Lives - a thing of the past?"¹ at the Royal Society for the encouragement of Arts, Manufactures and Commerce (RSA) on 19 June 2008, which was sponsored by Reuters Institute and Media Standards Trust, and was on information privacy and data privacy.

The format was very effective, with disciplined timekeeping by the chair (which is very important, I feel). The "witnesses" gave their views, on which a panel of "judges" questioned and commented, then there were comments and questions from the floor followed by the "judges" summarising in one minute each what their thoughts on the subject were after hearing the witnesses.

The only possible improvements would have been for the chairman to read the biographies more slowly so that the audience could hear them properly - talk about rapidfire machinegun rattle - and someone should please give the chairman an actual chair at the side and make him sit down while witnesses/judges are speaking, as he often stood in front of the panel with his back to the audience blocking their view of the speakers, so unfortunately he was more "gerroutawayman" than chairman!

Note that many of the following quotes won't be precisely verbatim or in the exact order said - this is just my attempt to convey their gist, so by all means blame my hasty note-taking if I've paraphrased inaccurately - but at least you'll be able to hear the speakers direct in the MP3 recording of the session, available in about a week or so from the RSA events pages.

The "judges"

• Stephen Whittle, visiting fellow at the Reuters Institute of Journalism at Oxford University and a former BBC Controller.
  
  
• Claire Fox, director of Institute of Ideas and BBC Radio 4's Moral Maze panelist
  
  
• Iain Dale, political commentator and Conservative Party activist (see Iain Dale's own write-up of the event.)
  
  
• Chair: Matthew Taylor, CEO of the RSA.

The "witnesses"

Dominic Campbell of consultancy FutureGov, who lives his life online via Twitter etc - "*My* declarative lifestyle"

Is this the end of multiple identities: public, private, personal, political/professional? He pointed out everyone goes to work and just acts - he doesn't want to do that. He's gained work through living this way, breaking down the barriers between work and private life.

He acknowledged it was a form of micro celebrity but it's very unlikely he'll ever be a politician as a result of what he's put online!

He played to the audience the well known Facebloke spoof video about Facebook, which I've embedded below - if you've not already seen it do, it's a good laugh and makes some telling points:

Quotes/points

"You seem to be replicating village life - and the village idiot." (Claire Fox)

Isn't putting things into the public realm where they're of no interest even to him, somehow insulting to himself? (didn't note who said that)

Tom Ilube, CEO of online identity company Garlik:

We're in a phased transition, ice to water. People don't always understand the digital trails they're leaving. Information the government publishes about people and that people publish about themselves can be searched and joined up to provide insights into their personal information that they don't expect.

He thinks there's a kind of Moore's Law for information - the amount of personal information about us doubles about every 12 months; in 5 years there'll be 10 times the info out there, joined up in ways we don't know about today.

He showed how quick and easy it is to find out about someone and their life just by typing their name into a search engine etc, using Claire Fox as an example - Google, Google Images, ZoomInfo (see my review of an early version of ZoomInfo) and other very well funded people search engines, a Times article, 192.com for her address, a genealogy site for her mother's maiden name, even a photo of her house... he can make up a utility bill with someone's name on it in 5 minutes!

He's been the victim of identity theft because of the info out there about him (luckily being in the industry he knew how to deal with it) but on the other hand through the Net he's also found a sister thousands of miles away he'd not seen for 30 years.

The ease of finding information about others can be empowering for people too, e.g. in a recent survey of about 2000 respondents:

• 16% will search for their neighbours on Google before moving house or flat (notice I carefully don't use "Google" as a verb!)
  
• 20% of parents, on their child's teacher
• 30% of respondents, on doctors, lawyers etc they're thinking of going to

He believes in 10 years it'll be impossible to be totally private in the digital economy. There's info even about his eldest sister, who's never gone online, put out there by others.

He thinks there should be a difference between the private and the public in some ways, but in terms of the technology there isn't. You can't even enforce it through laws - the information could be obtained through a service in another country e.g. Zoominfo is a US corporation.

He'd like stronger data protection laws to help us find out what info organisations hold about us and what decisions they are making based on it. He sends out subject access requests (under the UK Data Protection Act) from time to time, and e.g. the Institute of Directors had not only the date he joined and left and his credit card details, but also a log of every single time he'd been in and out of the building over 10 years ago.

Many organisations may have no idea why they're holding certain information until someone suggests that they sell it - and then they will!

His point is, things are profoundly different now - not necessarily bad or scary, but different - and people need to engage with their own digital identity.

Dr Tanya Byron - child psychologist and author of the UK government commissioned Byron Review on children's use of the internet and videogames:

Technology is great, her daughter can visit the US Library of Congress from her bedroom, but there's a digital generation divide (or perhaps generational digital divide). Kids are web 2.0 content creators, but their parents, most people over 35, are web 1.0: email, surfing.

Kids socialise via technology. Our culture is now so risk averse we don't let kids out into the streets - the radius for children has reduced by 80% since 1977. They can't go outside so they go online.

They're tech savvy but haven't got the skills of critical evaluation to keep themselves safe, e.g. posting photos on social networking pages not understanding the consequences, that once it's out there it's out there forever. 1 in 10 children meet someone they first encountered online.

The safety of children is paramount and privacy should be constructed on that basis.

Policing is pointless: Australia tried to set up blocking at ISP level, and within 24 hours a 14 year old boy had got round it by guessing his mother's password! It's not about prying, or even warning kids about predators online (in fact cyberbullying is their biggest fear); it's about supervision and thought.

Parenting is an online not just offline task. Parents need to talk to their children, make sure that they think, that they know who they're talking to: prepare their children to understand the risks, give them the tools and critical evaluation skills to check the reliability of sources and that people are who they say they are.

Jean Seaton, Professor of Media History at the University of Westminster and the BBC's Official Historian

Mores and sensibilities change. She favours opacity because some things can't be said, particularly in front of children. There are things you'd say to your spouse you wouldn't say to anyone else, because you're testing them out, just like governments may test some things in the JS Mill's way that they would not wish to get out.

Robespierre wanted transparency of souls, and he was not exactly a nice man!

She thinks we need more negotiated wrenching back of things that are or should be secret.

We can't reverse what's been happening but it's important to work out and define what it is we still don't know, what we know more or less of. In Britain today we know less of what's happening in India than we did in the 19th century.

Parents have to let their children go. Suffering one minor beating up is a learning experience!

Other people and other cultures should be treated properly, with concerned engaged respect.

Camilla Wright, co-founder of popular celeb and music site Popbitch

Once, only carefully controlled information was let out by celebrities. Popbitch was started to show the pop world in a more human light, with trivia about their pets, "celebrity urinal" etc.

Celebrity gossip is one way of putting info out there that people can share as social currency - talk about it on the bus the next day etc.

Now there's a tsunami of information deliberately released by celebrities, it's even considered legitimate to make and market your own sex tape in order to become famous - public and private life have become confused. What's private on Monday can be public on Tuesday etc.

Yet anyone who has enough money can invoke the Human Rights Act e.g. a husband was even stopped from telling anyone about his wife's affair.

Even serious public figures want to reveal all now too - Cherie Blair, John Prescott. It's a confessional world now, perhaps it's the influence of US talk shows etc, perhaps they think it makes them seem more authentic. But it seems people only want to reveal information when they're getting paid for it!

Popbitch will consider it public domain when people choose to make their own lives public, but they steer clear of children, "unfunny" things like cancer or mental illness.

Other points

"Governments often want more information about people than a good man should want or a bad man should have." (A paraphrase of this quote about power, I believe.)

Iain Dale's 10 points from the session (I didn't get them all!):

6. If he didn't consider ID cards bad before he would now!
5. He's moving to the remote mountains of West Virginia..
1. There's no such thing as privacy.

Claire Fox:

Intellectually we've lost sight of how to defend privacy as a society. The focus seems to be on the risks, e.g. paedophiles, or calling for more regulation, which holds back journalism.

We should be able to test out ideas without everything being minutely scrutinised.

Part of being free is being able to experiment away from prying eyes, of the state or other people. If we give up privacy we give up freedom and the right to be treated as adults.

Stephen Whittle:

It's important to have the ability to develop some of your life in private. A society that does not value and protect privacy runs the risk of being one without intimacy, honesty, trust.

That's our challenge. Our own dignity requires some degree of self-restraint, our own liberty requires some degree of civic engagement. We'll lose a lot if we don't care about privacy and engagement.

Note

1. I've linked to the Google cache of the events page only - I'll update this post to link properly to the events page ASAP, but they've inexplicably deleted it from their Forthcoming events page without adding it to their Past Events, it's currently an inaccessible password-protected page.

Tags: data protection, private lives, digital identity, online identity, children, discussion, RSA, Royal Society for the encouragement of Arts, Manufactures and Commerce, Stephen Whittle, Claire Fox, Iain Dale, Matthew Taylor, Dominic Campbell, Tom Ilube, Garlik, Tanya Byron, Jean Seaton, Camilla Wright, Popbitch, Improbulus, A Consuming Experience